The Kampala Amendments on the Crime of Aggression Before Activation: Evaluating the Legal Framework of a Political Compromise (Part 2)

02 Oct The Kampala Amendments on the Crime of Aggression Before Activation: Evaluating the Legal Framework of a Political Compromise (Part 2)

[Astrid Reisinger Coracini is is Lecturer at the University of Salzburg and Director of the Salzburg Law School on International Criminal Law, Humanitarian Law and Human Rights Law (SLS). This is the second of a two-part post on the subject. The first can be found here.]

1. Does the non-application of Art. 121(5) second sentence violate the law of treaties?

Article 40(4) of the Vienna Convention in the Law of Treaties (VCLT) stipulates that unless the treaty provides otherwise, ‘[t]he amending agreement does not bind any State already a party to the treaty which does not become a party to the amending agreement’. The rule reflects the consent principle, which is also the basis of the general rule regarding third States formulated in Art. 34 VCLT, ‘[a] treaty does not create either obligations or rights for a third State without its consent’.

The Rome Statute does provide otherwise than the VCLT in its general amendment procedure. Art. 121(4) of the Statute foresees an entry into force erga omnes partes after acceptance of an amendment by seven-eighths of the States parties. The Statute also provides otherwise for amendments to provisions of an institutional nature, which are expressly listed in Art. 122. The amendment procedure according to Art. 121(5), on the other hand, follows the default rule. The first sentence of Art. 121(5) guarantees that an amendment (to articles 5 to 8 of the Statute) only enters into force for those States parties that have accepted it. Differently, Art. 121(5) second sentence does not deal with questions of treaty law but with the consequences of exercising (international) criminal jurisdiction over individuals. It defines conditions for the exercise of jurisdiction over crimes covered by an amendment and it thereby establishes a separate jurisdictional regime, different from Part 2 of the Statute.

Art. 15bis equally establishes a distinct jurisdictional regime, which differs from Part 2 of the Statute as well as from Art. 121(5). The common denominator, however, is that all three jurisdictional regimes, the one under Part 2, the one under Art. 121(5), and the one based on Art. 5(2), may affect nationals or the territory of a State that has not accepted the treaty or an amendment and that is consequently not bound by them. Whether the consequences of the exercise of international criminal jurisdiction over individuals (the Court’s jurisdictional reach) are binding or in any way create obligations or rights for third States was extensively discussed in the aftermath of the Rome Conference. The general view has been that consequences of the jurisdictional reach do not affect treaty relations and that there was no requirement of State consent for the exercise of (international) criminal jurisdiction. Consequently, the Court’s jurisdictional reach does not establish a new treaty regime, let alone one with obligations erga omnes. The requirement of 30 ratifications remains a condition for the Court’s exercise of jurisdiction over the crime of aggression.

The aggression amendments also do not establish cooperation obligations for States parties that do not adhere to them. It has been argued that a general obligation to cooperate fully with the Court in its investigation and prosecution of the crime of aggression already stems from Art. 86, which, at the time of adoption, acceptance or ratification of the Statute, referred to all ‘crimes within the jurisdiction of the Court’. If such a general duty to cooperate in the investigation and prosecution of crime of aggression did not exist in the Statute prior to the aggression amendments, but was created by them, it would only create obligations for States that accept them.

What remains, is the claim that the non-application of Art. 121(5) second sentence violates a treaty right that was established by the Statute for States parties to shield their nationals and their territory from the Court’s exercise of jurisdiction of the crime of aggression. Still, the same right is granted to States parties under the aggression amendments. The dispute is consequently reduced to the modification that while Art. 121(5) second sentence grants this right unconditionally, under the Kampala compromise it is granted upon declaration. However, this claim remains a theoretical one. If Art. 121(5) does not apply to the provision on aggression in the first place, the aggression amendments cannot affect any obligations or rights of States parties enshrined therein. The same is true, if the application of Art. 121(5) second sentence is subjected to the mandate of setting out conditions for the exercise of jurisdiction under Art. 5(2). In that case, all obligations and rights would lawfully be subjected to possible alterations within the mandate of Art. 5(2).

2. Does the non-application of Art. 121(5) second sentence violate general international law?

It has been argued that the crime of aggression is different from the other three core crimes because it requires the Court to determine a question of State responsibility as a precondition for the exercise of jurisdiction and that the determination of an act of aggression may require consent of the States concerned [for a detailed discussion, see Astrid Reisinger Coracini & Pal Wrange, ‘Is the Crime of Aggression Different from the other Crimes under International Law?’ in: Claus Kreß/Stefan Barriga (eds.), The Crime of Aggression – A Commentary (Cambridge University Press, 2016) p. 307-350].

The discussion is somewhat moot as the jurisdictional regime established by the aggression amendments is factually a consent-based regime. The Kampala compromise imposes an even stricter regime than Art. 121(5) second sentence. The requirement of a double consent (of the State where the conduct occurred and of the State of nationality of the accused) for the exercise of jurisdiction is required with regard to States parties and non-States parties. But independent of the Kampala compromise, is there a consent requirement under international law for the exercise of jurisdiction of the crime of aggression?

Even under the ICJ’s consent-based jurisdictional regime, an indirect determination of acts of non-consenting States may be possible, if it remains without legal consequences for these States. In Certain Phosphate Lands in Nauru (Nauru v. Australia), the ICJ held that it was in no way precluded from adjudicating upon the claims against one out of three States that shared responsibility in the administration of the territory in question, provided the legal interests of the third States which might possibly be affected did not form the actual subject-matter of the requested decision.

It is undisputed that an act of aggression by a State is one of the elements of the definition of the crime of aggression that needs to be established for individual criminal responsibility to arise. Assessing the elements of a crime is not a formal determination of State responsibility. It requires the establishment of facts and their legal evaluation as a precondition for reaching a verdict. There are no consequences for a State that follow from the Court’s determination of an act of aggression. The ‘very subject-matter’ of the Court’s decision remains the innocence or guilt of an individual.

The ‘requirement’ to determine an act of State may be unique to the crime of aggression, however, this distinction is merely semantic. A consent requirement cannot be based on the frequency of the determination of an act of State but it is a matter of principle. Either the determination of an act of State by an international criminal jurisdiction requires State consent or not. In that regard, all four core crimes can be (and frequently are) committed by State organs. Each determination of guilt or innocence of an organ of a State or any other person whose conduct is attributable to a State, comprises ipso facto a determination of an act of State. This indirect determination of State responsibility has not been an obstacle to establishing a Court with jurisdiction over nationals of non-consenting States.

In conclusion

The political compromise that was reached in Kampala excludes the application of Art. 121(5) second sentence to the crime of aggression. This non-applicability can be reasonably argued on the basis of the relevant provisions of the Rome Statute.

Art. 121(5) is not the starting point but one out of several possible answers to the question which procedure applies to the provision of aggression. The mandate of Art. 5(2) to adopt such a provision is vague and allows for different interpretations. While there were competing claims as to which procedure was the best position under international law, a full application of Art. 121(5) was only one of them. The compromise decision taken in Kampala is based on a different legal position, which acknowledges the special position of the crime of aggression under the Statute, and which was overwhelmingly supported by a majority of States.

The majority understanding of Art. 121(5) second sentence is that it establishes a specific jurisdictional regime for crimes covered by an amendment, which differs from Part 2 of the Statute. The Kampala compromise does not establish agreement on a different reading of Art. 121(5) second sentence. The Kampala compromise establishes agreement on a reading of Art. 5(2) and Art. 12(1) that leads to the non-applicability of Art. 121(5) second sentence to the crime of aggression.

If Art. 121(5) second sentence does not apply, the aggression amendments cannot infringe upon a right, enshrined in this sentence. The agreement reached at the Review Conference, which is based on one of several possible and reasonable interpretations of the applicable law, cannot violate rights a State may have enjoyed if an alternative interpretation had been agreed upon. This simply falls beyond the scope of Art. 34 and Art. 40(4) VCLT.

Consent to be bound by a treaty and consent to the jurisdictional reach by the Court are two separate matters. Only States that adhere to the aggression amendments are bound by them (as a matter of treaty law). The fact that nationals or the territory of a State may be affected by the exercise of the Court’s criminal jurisdiction over individuals does not qualify as a binding effect for that State.

It is difficult to comprehend how a view that the Court cannot exercise its jurisdiction regarding the crime of aggression over nationals of a State or committed on the territory of a States unless that State accepts or ratifies the aggression amendments could be ‘clarified’ without re-opening the text of the amendments. Any subsequent agreement in that regard would clearly reverse the contents of the compromise of Kampala and refute the negotiations process. It would also pose difficulties for the 35 States that have taken legal steps on the basis of the Kampala compromise.

Reopening the compromise, which was a package deal, would not only affect the exercise of jurisdiction over a crime of aggression, arising from an act of aggression by a State party that does not adhere to the aggression amendments. It would equally affect other components of the compromise. If Art. 5(2) was not the legal basis to establish conditions for the exercise of jurisdiction over the crime of aggression that might differ from Part 2 and from Art. 121(5) second sentence, Art. 15bis and Art. 15ter would need to be interpreted through the jurisdictional regime of 121(5). This would undermine compromise decisions relating to the opt-out regime, the preferential treatment of opting-out States parties as victims of an act of aggression, referrals by the Security Council, and ultimately the exercise of jurisdiction over nationals and the territory of non-States parties.

It was suggested that the opt-out regime of Art.15bis would not be deprived of its meaning if interpreted in light of Art. 121(5) second sentence, because it could allow States parties to opt out in order to fall within the Court’s jurisdictional protection as a victim of aggression. But there is no rational consolidated reading of these two provisions. An interpretation that suggests an opt-out from a jurisdictional regime that States do not consider themselves ‘in’ is unreasonable.

Furthermore, the possibility to opt out of the Court’s jurisdictional reach was a concession to those States parties that believed they had acquired a right under Art. 121(5) second sentence to be exempt from the effects of the Court’s exercise of jurisdiction over the crime of aggression. The drafters transposed such a right to the aggression amendments. In order to counterweigh the requisite of depositing a (low impact, yet public) declaration, they even added another right. States parties that opt out in accordance with Art. 15bis, remain under the Court’s protection should they become a victim of an act of aggression. This additional privilege was not given to States parties without a cause. It was a trade-off in order to establish consensus on the basis of the non-applicability of Art. 121(5) second sentence.

At the upcoming session of the Assembly of States Parties, it will be the responsibility of States to defend the compromise they have reached at the Kampala Review Conference. Discussions on the crime of aggression and the jurisdiction of an international criminal court over this crime have started at the time of the League of Nations and they could be easily continued ad infinitum; but it is time for a closure. It lies in the nature of a compromise decision that it cannot reflect all positions. States which supported a meaningful exercise of the Court’s jurisdiction over the crime of aggression under the existing framework of the Statute have succeeded in upholding some structural principles, but have made major concessions when it comes to the factual exercise of jurisdiction by the Court. In that regard, the Kampala compromise was particularly sensitive towards the concerns of some States. Eventually, the aggression amendments are not all that was wished for, but evidently, they are what lies on the table and what will be subjected to an activation decision in December.

Against the never-ending fascination to discuss legal aspects of one sentence of one article of the Rome Statute, the larger issues at stake must not be let out of sight. The Court’s jurisdiction over the crime of aggression should not be considered a mere nuisance when it comes to a decision on the use of armed force. Even under a narrow definition and with limited jurisdiction, the crime of aggression still protects one of the fundamental principles of international law, the prohibition of the use of force. Seven years after Kampala, the significance and urgency of strengthening the protecting scope of this principle unfortunately seems to have increased rather than declined.